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ANDREW MUSIOLOWSKI v. WORKMEN'S COMPENSATION APPEAL BOARD (U.S. STEEL CORPORATION) (01/29/88)

decided: January 29, 1988.

ANDREW MUSIOLOWSKI, DECEASED, BY ROSE MUSIOLOWSKI, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (U.S. STEEL CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Andrew Musiolowski, Dec'd v. U.S. Steel Corporation, No. A-87355.

COUNSEL

Simon V. John, John & John, for petitioner.

Robert C. Jones, with him, James D. Strader, for respondent.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish. Judge MacPhail concurs in the result only.

Author: Kalish

[ 117 Pa. Commw. Page 490]

Petitioner, Rose Musiolowski, seeks review of a determination by the Workmen's Compensation Appeal Board (Board) denying her widow's claim for benefits upon the death of her husband, Andrew Musiolowski (decedent).

Petitioner's claim is based on the decedent's death resulting from pneumoconiosis sustained during the course and scope of his employment with the respondent U.S. Steel Corporation for thirty-six years.

The Board, holding that the petitioner had not met her burden of proof, reversed the referee's award of compensation. We remand to the Board.

Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 411(2), provides "that whenever occupational disease is the basis for compensation, for disability or death under this act, it shall apply only to disability or death resulting from such disease. . . ." (Emphasis added.) Thus, it is the claimant's duty to show that there was a nexus between the occupational disease and death by unequivocal medical testimony.

[ 117 Pa. Commw. Page 491]

Appellate review must focus on whether there is rational support in the record, when reviewed as a whole, for the agency action. Republic Steel Corp. v. Workmen's Compensation Appeal Board, 492 Pa. 1, 421 A.2d 1060 (1980).

At the hearing before the referee, Dr. Charles Krifcher, a pathologist, testified for the petitioner that when he performed the autopsy he found that "the lungs were studded with numerous scattered nodules, many of which were firm and hard and black"; that the lungs had a sandpaper feel, all of which was "indicative of coal worker's pneumoconiosis." Notes of Testimony (N.T.) at 7. He said, "The main cause of death was extensive acute posterior myocardial infarction." N.T. at 13. He went on to explain what he meant when he said the myocardial infarction was the main cause of death, namely:

[T]hat coal worker's pneumoconiosis . . . had the effect of decreasing the amount of lung tissue available for exchange of oxygen or oxygenation of the blood; and, . . . [by] decreasing the ability of the blood to be oxygenated. . . . It increased the amount of ischemia. In other words, the blood that would have been able to ...


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